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The author made only a passing reference to judicial activism and certainly did not prescribe a remedy for it. I think he presented some valid cautions about attempts to discern original intent. But, as I said, he did not provide an alternative fix to the very real problem Meese undertook to address.

Brest's argument ... violates the logical law of the excluded middle: ... if you wind up in a situation where current case law says "not A" but the original statute says "A", somebody screwed up big time somewhere in the middle.

Definitely, the current practice should be much more disciplined about standing up and correcting those instances. Still, I think there could be exceptions where it just works out that way.

I am not saying that there is no room for prudence in the understanding and application of the law (constitutional or otherwise). But in the case of judges, the prudence exercised concerns what is equitable, meaning do the facts in the particular case fit under the general rule expressed by the law, what Aristotle calls epikeia.

What Brest calls "prudence," meaning the changing the previously accepted general understanding of the law to make it fit under new circumstances is a power belonging not to judges, but to the legislator or the amendment process (that's what they're there for).

I am not complaining about your post, but I am sick to death of hearing about "judicial supremacy" (tyrrany) dressed up the robe of liberty.